Reilly v. City of Rome , 980 N.Y.S.2d 859 ( 2014 )

Appeal from an order of the Supreme Court, Oneida County (Norman I. Siegel, J.), entered June 13, 2012 in a proceeding pursuant to CPLR article 78. The order granted respondents’ motion to vacate a default judgment.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to CPLR article 78, petitioner appeals from an order granting respondents’ motion to vacate a default judgment. We note at the outset that, although no appeal as of right lies from an intermediate order in a CPLR article 78 proceeding (see CPLR 5701 [b] [1]), we treat the notice of appeal as an application for leave to appeal from the order and grant the application (see Matter of Conde v Aiello, 204 AD2d 1029, 1029 [1994]). It is well settled that the decision whether to vacate a default judgment is a matter within Supreme Court’s discretion (see Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831, 832-833 [1987]). Here, given that respondents proffered a reasonable excuse for failing to serve a timely answer to the petition and demonstrated a meritorious defense (see CPLR 5015 [a] [1]; Puchner v Nastke, 91 AD3d 1261, 1261-1262 [2012]), and considering the “strong public policy in favor of resolving cases on the merits” (Moore v Day, 55 AD3d 803, 804 [2008]; see Puchner, 91 AD3d at 1262), we conclude that the court did not abuse its discretion in granting respondents’ motion (see Cavagnaro v Frontier Cent. School Dist., 17 AD3d 1099, 1099 [2005]). We note that, prior to the default, respondents engaged in settlement discussions with petitioner and filed a motion to dismiss the petition, thus evidencing a “good faith intent to defend” the proceeding on the merits (Coven v Trust Co. of N.J., 225 AD2d 576, 576 [1996]), and we further note that petitioner was not prejudiced by the slight delay in answering the petition (see Accetta v Simmons, 108 AD3d 1096, 1097 [2013]). Present — Smith, J.E, Peradotto, Lindley, Valentino and Whalen, JJ.